IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA

RICKIE L. HOBSON,

Plaintiff,

v. Case No.: 05-2001-CA-006802-XXXX-XX

FLORIDA MULCH, INC.,

Defendant.

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, RICKIE L. HOBSON, by and through his undersigned attorney, sues Defendant, FLORIDA MULCH, INC., and alleges as follows:
1. This action is brought to obtain relief for discrimination committed by Defendant FLORIDA MULCH, INC. against Plaintiff on the basis of Plaintiff’s disability/handicap and for violation of Chapter 440, Florida Statutes.
2. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00), exclusive of interest, costs, and attorney fees.
3. The unlawful practices alleged below were committed within Brevard County, Florida.
4. Plaintiff currently resides in Brevard County, Florida, and at all times material hereto resided in Brevard County, Florida.
5. Defendant, FLORIDA MULCH, INC., is a Florida corporation and is an “employer” as defined in the statutes under which this complaint is brought.
6. Plaintiff was employed by Defendant, FLORIDA MULCH, INC. as a truck driver.
7. At all times, Plaintiff performed all duties assigned to him in a professionally competent manner, faithfully followed all reasonable instructions given to him by his supervisors, and abided by all the rules and regulations of Defendant.
8. Plaintiff was employed by Defendant from October 18, 1999 through May 15, 2000, when he was terminated by Defendant.
9. On or about October 18, 1999, Plaintiff was employed by the Defendant as a truck driver working 6 days a week, earning approximately $900.00 a week in Melbourne, Florida. His duties included loading the truck and delivering the load. On November 22, 1999 while in the course of his duties as a truck driver, he fell off the back of a flatbed trailer and fractured his right wrist. Attached is a copy of the First Report of Injury as Exhibit “A”.
10. Plaintiff was hospitalized at Holmes Regional Medical Center in Melbourne, Florida, where Dr. Jeffrey O’Brien, M.D., an orthopedic surgeon performed an open reduction with fixation. Following surgery claimant attended physical therapy until April 2000. On May 15, 2000, Dr. O’Brien, treating physician, released plaintiff to return to work full duty with no restrictions. Attached is a copy of Dr. O’Brien’s note, Exhibit “B”.
11. On May 16, 2000, Plaintiff went to see Ms. Susan Shaw, Personnel Director and Manager, Florida Mulch, Inc. regarding his return to work. At that point, Ms. Shaw asked Plaintiff “What about your lawyer?” Plaintiff, who had retained counsel to represent him in regard to his workers’ compensation claim stated, “I still have one.” Ms. Shaw stated, “Well as long as you have a lawyer, you can’t work here.”, and then fired the claimant from his employment.
12. The injury to Plaintiff’s wrist resulted in a permanent disability/handicap to Plaintiff.
13. Although Plaintiff had the capacity to and wanted to return to work and requested reasonable accommodation for his physical disability, Defendant’s manager terminated him because of his disability and because he had retained an attorney to represent him in regard to his workers’ compensation claim.
14. As a result of his accident on November 22, 1999 Plaintiff suffered a disability/handicap but still could perform the essential functions of his job, with or without accommodation.
15. Plaintiff has suffered and continues to suffer grave and severe damage to his financial welfare, and his employment prospects, by reason of Defendant’s discriminatory actions against Plaintiff.
16. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendant’s actions.
17. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
18. Plaintiff has exhausted his administrative remedies prior to bringing this action.
19. Plaintiff has complied with all conditions precedent prior to bringing this action.
COUNT I
VIOLATION OF SECTION 440.205, FLORIDA STATUTES

20. Plaintiff realleges and incorporates Paragraphs 1 through 19 of this Complaint as if set forth in full herein.
21. Plaintiff claimed workers’ compensation benefits provided under Defendant’s workers’ compensation coverage as mandated under Chapter 440, Florida Statutes as a result of his on the job injury.
22. Defendant, its agents and/or employees, did wrongfully discharge, threaten to discharge, intimidate and coerce Plaintiff in violation of Section 440.205, Florida Statutes because Plaintiff filed for workers’ compensation benefits.
23. As a direct and proximate result of said acts, Plaintiff suffered loss of employment, loss of income, including front and back pay, loss of employment benefits, including health insurance, emotional distress and humiliation.
WHEREFORE, Plaintiff prays for judgment against Defendant, FLORIDA MULCH, INC. as follows:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been discriminatorily discharged.
B. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries.
C. Front pay.
D. Punitive Damages.
E. Such other damages as may be just and proper.

COUNT II
FLORIDA – HANDICAP

24. Plaintiff realleges and incorporates Paragraphs 1 through 19 of this Complaint as if set forth in full herein.
25. At the time of his discharge, Plaintiff had a handicap that substantially limited one of the major life activities of Plaintiff, i.e. a permanent injury to his wrist.
26. In spite of his handicap, Plaintiff was able to perform all of the essential functions of his position.
27. The termination of Plaintiff’s employment was motivated by the intent of Defendant, FLORIDA MULCH, INC., to discriminate against Plaintiff on the basis of his handicap.
28. In its termination of Plaintiff’s employment, the Defendant, FLORIDA MULCH, INC., discriminated against Plaintiff on the basis of his handicap.
29. In terminating Plaintiff’s employment, Defendant violated the provisions of Section 760.10(1)(a), Florida Statutes, 2001, which makes it unlawful for an employer “To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status”.
30. Plaintiff filed a Charge of Discrimination alleging disability discrimination, with the EEOC, which was dual filed with the Florida Commission on Human Relations (FCHR) and more than one hundred eighty (180) days have expired since the filing of said Charge of Discrimination. A copy of said Charge of Discrimination is attached hereto and incorporated herein as Exhibit “C”.
WHEREFORE, Plaintiff prays for judgment against Defendant, FLORIDA MULCH, INC. as follows:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been discriminatorily discharged.
B. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries.
C. Front pay.
D. Punitive Damages.
E. An award of reasonable attorney fees and all costs incurred herein.
F. Such other damages as may be just and proper.
COUNT III
FEDERAL DISABILITY DISCRIMINATION (ADA)

31 Plaintiff realleges and incorporates Paragraphs 1 through 19 as if set forth in full herein.
32. Plaintiff had: (a) one or more disabilities, i.e. a physical or mental impairment that substantially limited one or more of the major life activities of Plaintiff; (b) a record of such an impairment; or (c) was regarded as having such an impairment.
33. In spite of his disability, Plaintiff was able to perform all of the essential functions of his position.
34. At the time of his discharge, Plaintiff had a physical disability that substantially limited one of the major life activities of Plaintiff, i.e. a permanent injury to his wrist.
35. In spite of his disability, Plaintiff was able to perform all of the essential functions of his position.
36. The termination of Plaintiff’s employment was motivated by the intent of Defendant, FLORIDA MULCH, INC., to discriminate against Plaintiff on the basis of his disability.
37. In terminating Plaintiff’s employment, Defendant violated the Americans with Disabilities Act, 42 USC Section 1201, et seq., which makes it unlawful for an employer to discharge or otherwise to discriminate against a qualified individual with a disability, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s disability.
38. On or about November 14, 2001 Plaintiff filed a charge alleging unlawful discrimination on the basis of disability against Defendant FLORIDA MULCH, INC. with the Equal Employment Opportunity Commission (EEOC), as required by 29 USC Section 626(d), EEOC Charge Number 150 A1 0476. A copy of Plaintiff’s EEOC charge is attached hereto and incorporated herein as Exhibit “C”.
39. Plaintiff has been issued a Dismissal and Notice of Rights document by the EEOC, attached as Exhibit “D” and less than ninety (90) days expired since Plaintiff received Exhibit “D” and the filing of the original complaint in this action.
40. In terminating Plaintiff, Defendant FLORIDA MULCH, INC. engaged in a discriminatory practice with malice and reckless indifference to the statutorily protected rights of Plaintiff.
41. Proximately and directly as a result of Defendant FLORIDA MULCH, INC. discriminating against Plaintiff on account of his disability, Plaintiff has suffered damages consisting of severe emotional distress, loss of salary and other compensation.
42. The conduct of Defendant, FLORIDA MULCH, INC., complained of herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff.
WHEREFORE, Plaintiff prays for:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been discriminatorily discharged.
B. Compensatory damages, including, but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary loss.
C. Front pay.
D. Punitive Damages.
E. An award of reasonable attorney’s fees and all costs incurred herein.
F. Such other damages and relief as may be just and proper.

DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.